Probate and Administration

A grant of probate is not always required, however, depending on the types of assets held by the deceased, as well as the size of their estate, there may be a requirement for a grant of probate to be obtained.

Where the deceased owned real estate or where they held assets exceeding a certain monetary threshold, it will be necessary to get a grant of probate before real estate can be transferred or before asset holders such as banks or share registries will release the assets they are holding.

When preparing their will, a testator will usually appoint one or more executors. The executor is the person who is responsible for applying for a grant of probate upon the death of the testator, and for administering the estate of the deceased in accordance with their will.

A grant of probate can only be obtained by an executor or substitute executor appointed under a will.

If there is no executor appointed, or if there is no will, you cannot obtain a grant of probate and will instead need to apply to the Supreme Court for letters of administration.

The probate rules set out in Part 78 of the Supreme Court Rules 1970 (NSW) require that an application for probate is made within six months of the testator’s death. If this doesn’t happen, the court will need to be provided with a sworn statement setting out the reasons for the delay.

To obtain a grant of probate, there are strict legal requirements that must be followed. This includes the following steps:

• Writing to relevant parties to obtain details of assets and liabilities of the estate;
•  Preparing the probate application paperwork including the summons for probate, supporting affidavits and inventories of assets and liabilities together with the will of the deceased and their death certificate;
• Publishing a notice of intended application for probate; and
• Responding to any requisitions raised by the Court.

It can take anywhere from several weeks to several months to obtain all of the necessary information and sworn statements that the Supreme Court will require.

Once all of the documentation is prepared and filed with the Court, the court will typically take several weeks or even months to process and finalise the grant.

In circumstances where there are complexities with the estate, the Court can issue a requisition requiring the parties applying for the grant to provide further sworn statements or information for the Court to consider when deciding whether to make a grant of probate.

Once a grant of probate is obtained, the executors of the estate may administer the estate in accordance with the will of the deceased. This may include transferring money or property to beneficiaries.

Prior to making distributions and administering the estate, there are certain legal requirements that an executor may have to meet such as publishing probate notices or waiting certain time periods to ensure that there are no claims against the estate.

Legal professional fees for a grant of probate are regulated by the Legal Profession Uniform Law Application Regulation 2015 (NSW) which sets out a scale of fees based on the size of the estate.

The Supreme Court of New South Wales also has a table of probate filing fees which are based on the size of the estate, and which are paid to the Court in addition to any legal fees.

Obtaining a grant of probate in NSW can be a complicated process, and a failure to take the right steps at the right time can result in legal disputes, or financial and taxation consequences. It is important to obtain expert legal advice from an experienced probate lawyer.

At Thornton and King, our probate lawyers in Sydney have decades of experience obtaining grants of probate. Our estate lawyers have dealt with all types of probate matters, including contested probates. To speak to an expert probate solicitor, give us a call or submit an enquiry now.